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JEMZURA v. PSC

April 12, 1997

GEORGE JEMZURA, Plaintiff, against PUBLIC SERVICE COMMISSION, NEW YORK STATE ELECTRIC & GAS AND EMPLOYEES, GOVERNOR GEORGE PATAKI, JOHN O'MARA, INDIVIDUALLY, CATHERINE DUDLEY, INDIVIDUALLY, EUGENE CONNELL, INDIVIDUALLY, CHERYL CALLAHAN, INDIVIDUALLY, JOHN DRAGHI, INDIVIDUALLY, DIANE SIMPSON, INDIVIDUALLY, DENNIS VACCO, INDIVIDUALLY, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 The plaintiff, George Jemzura, has filed an action concerning New York State Electric & Gas Corp.'s ("NYSEG") refusal to provide an electrical line extension on land adjacent to property owned by his brother. The plaintiff claims that NYSEG's denial of electrical service deprived him, and his brother, farming and business opportunities including a multi-million dollar spring water enterprise. *fn1" This action is the latest in the last 20 years of pro se actions and proceedings brought by the plaintiff, his brother, or both before administrative, state, and federal courts upon the same underlying facts and issues. *fn2" The plaintiff filed this § 1983 claim asserting nine separate claims alleging that the defendants denied the plaintiff equal protection and procedural due process under the Fourteenth Amendment. Therefore, the plaintiff seeks relief in the form of monetary damages, court orders directing Governor Pataki and Attorney General Vacco to enforce the law, and punitive damages in the amount of $ 1,000,000. Finally, the plaintiff filed a motion that the undersigned recuse himself because of alleged prejudice in this case.

 Before the Court is the motion filed on behalf of defendants Pataki and Vacco to dismiss this Complaint in its entirety as against them. The plaintiff has filed a "cross-motion" asserting that he is suing defendants Pataki and Vacco in their individual capacity and not their official capacity, and requesting leave of Court to replead his Complaint, as of right, after plaintiff has an opportunity for discovery.

 II. DISCUSSION

 A. Motion for Recusal

 The plaintiff moves for recusal under 28 U.S.C. §§ 144 and 455. Under § 144, a district court judge shall recuse himself when the judge "has personal bias or prejudice either against him or in favor of any adverse party ...." Under 28 U.S.C. § 455(a), a district court judge must recuse himself "in any proceeding in which his impartiality might reasonably be questioned." The two sections are complementary, even when the only ground for recusal alleged is bias or prejudice. See United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). The Second Circuit has determined that the grounds for disqualification are the same under both statutes. See Apple v. Jewish Hosp. & Medical Ctr., 829 F.2d 326, 333 (2d Cir. 1987).

 The substantive inquiry to determine bias or prejudice is whether "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned." United States v. Lovaglia, 954 F.2d 811 (2d Cir. 1992). The burden is on the moving party to demonstrate an "objectively reasonable basis for questioning a judge's impartiality." In re I.B.M. Corp., 45 F.3d 641, 644 (2d Cir. 1995). This Circuit has explained that, under 28 U.S.C. § 455(a), recusal is appropriate only when the "opinions formed by a district judge ... display a 'deep-seated favoritism or antagonism that would make fair judgment impossible.'" Groden v. Random House, Inc., 61 F.3d 1045, 1053 (2d Cir. 1995), quoting Liteky v. U.S., 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994). Importantly, "the test here is not the subjective feelings of the defendant as to the court's alleged bias, but whether facts have been presented, assuming their truth, that would lead a reasonable person to infer that bias or prejudice existed, thereby foreclosing impartial judgment." Markus v. United States, 545 F. Supp. 998, 1000 (S.D.N.Y. 1992), aff'd 742 F.2d 1444 (2d Cir. 1983).

 The plaintiff argues that the undersigned must recuse himself because of past decisions made against the plaintiff and his brother which allegedly suggest bias. *fn3" The law is clear the bias or prejudice that results in recusal "must be extrajudicial and not based upon in-court rulings." In re I.B.M. Corp., 618 F.2d 923, 929 (2d Cir. 1980). This requires evidence that the judge formed "an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966). In relation to the motion before the Court, it is clear that the plaintiff's recusal motion is motivated by this Court's prior decisions in actions brought by the plaintiff's brother, Raymond. There is no case law to support recusal in such a situation. *fn4" In addition, there are no facts even remotely suggesting bias by the undersigned. If the fact that a judicial officer ruled against a party, or a party's relative, is grounds for recusal, then, at least with respect to highly litigious individuals, there could soon be no judges with jurisdiction to hear subsequent proceedings.

 Accordingly, this Court finds that the plaintiff has failed to make the requisite showing that the undersigned displays a "deep-seated favoritism or antagonism that would make fair judgment impossible." Groden v. Random House, Inc., 61 F.3d 1045, 1053 (2d Cir. 1995), quoting Liteky, 510 U.S. at 540. The plaintiff has failed to show any basis on which a reasonable person could conclude that the undersigned's impartiality could reasonably be questioned. See Lovaglia, 954 F.2d at 815.

 One further development merits discussion. Following the filing of this action, the plaintiff filed a notice of appeal from a prior decision by this Court. *fn5" As part of that notice, the plaintiff sent a letter to the undersigned demanding $ 50 to reimburse him for filing papers, threatening to sue the undersigned and his law clerks, and notifying the undersigned that the plaintiff was pursuing judicial misconduct proceedings against the undersigned. The Court notes that the general rule is that recusal is not appropriate merely because a party has sued or threatens to sue the judge presiding over that party's litigation. See United States v. Taylor, 569 F.2d 448, 450 (7th Cir. 1978); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977). *fn6" The logic behind the rule is to prevent "judge-shopping" by litigants.

 Therefore, the undersigned denies the motion for recusal, and now addresses the motion to dismiss defendants Pataki and Vacco.

 B. Motion to Dismiss Parties

 Defendants Pataki and Vacco move to dismiss themselves from this action based on sovereign immunity and the plaintiff's failure to state a claim under Fed. R. Civ. P. 12(b)(6).

 1. Eleventh Amendment Sovereign Immunity

 The Eleventh Amendment provides sovereign immunity to unconsenting states sued in federal court. See Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. ...


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